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Maroney: Time for a performance audit on statutes to preserve farms and protect water quality?

Editor’s note: This op-ed is by James H. Maroney Jr., who has a master’s degree in Environmental Law & Policy from Vermont Law School and is a former farmer.

The debate over whether a pipeline carrying tar sands oil across Vermont or a farmer who grows rye and distills it into whiskey on his farm should or should not be subject to environmental review begs the question of why any industrial process, much less conventional agriculture, infamous for its proclivity to pollute the water, should be exempt from Act 250.

Vermont’s zoning laws have their genesis in the federal Standard State Zoning Enabling Act (1921), which conferred upon communities a “legitimate and necessary exercise of the police power.” In 1931, the Vermont General Assembly enacted legislation permitting Vermont municipalities to regulate public land use in their communities through zoning.

The justification for land use planning, since Village of Euclid v. Ambler Realty (1926) has always been stated in extravagant declarations of purpose:

“To promote the public health, safety … prosperity, comfort, access to adequate light and air, convenience, efficiency, economy and general welfare; to enable the mitigation of the burden of property taxes on agricultural, forest and other open lands … to protect residential, agricultural and other areas from undue concentrations of population and overcrowding….”

But the unstated rationalization for it was far plainer: post World War II urban society, confirmed in the beneficence of yeoman farming — and trusting official assurances that toxic, untested chemical compounds would dissipate harmlessly — would acquiesce in modern agriculture’s onrushing (and seemingly inevitable) demolition of the working landscape in exchange for three-fold cheaper food.

Vermont enacted land use regulation in 1967. Because the act also invoked as its justification the protection of farmland, the Legislature exempted agriculture, which was to become the province of the Vermont Agency of Agriculture Food & Markets and the Accepted Agricultural Practices rules. Vermont’s enabling statute for land use states this exemption on its very first page:

Title 6, Vermont’s Agricultural Water Quality statute, provides the same broad exemption:

“Persons engaged in farming, as defined in [Act 250], who follow these practices shall be presumed to be in compliance with water quality standards.”

Likewise, Vermont’s Right to Farm Law exempts farms from common law nuisance liability, which comprises what is known as “conventional farming”:

“Agricultural activities shall be entitled to a rebuttable presumption that the activity does not constitute a nuisance if the agricultural activity … is conducted in conformity with federal, state, and local laws and regulations (including accepted agricultural practices)

The Legislature provided these exemptions for agriculture without regulating the application of 80,000,000 pounds per year of artificial fertilizer and herbicides, according to the precepts of the conventional farm paradigm, which is responsible for 55-60 percent of the pollution entering Lake Champlain. It granted the exemptions without analyzing the paradigm’s manifestly destructive social, economic and environmental costs and without recognizing that in the decades following WWII, Vermont consumers no longer depended upon Vermont farmers for their food.

The primary purpose for which the Legislature established the Vermont Housing and Conservation Board (1987) was to “assist in creating affordable housing for Vermonters.” The second part of VHCB’s mission was “conserving and protecting Vermont’s agricultural and forest land[s, which are] of primary importance to the economic vitality and quality of life of the state…” To accomplish its mission, the Legislature created the VHCB Trust Fund, to which the Legislature allocates $23 million to $26 million per year.

For legislators, the conflation of the two purposes was disingenuous: the preservation and conservation of Vermont farmland was a popular objective, so the Legislature added it as justification for the creation of affordable housing, which was not. Moreover, taxing the public to create housing for lower income families was principally a response to the disintegration of the single-family home ethic and the appalling spread of multi-family housing. And, because agricultural land was the logical place for new development, because it was vulnerable (and because some owners were eager to sell their land for development), smart growth regulators wanted to construct a legal and societal armor around farming, to make it resistant to development and nuisance suits.

Had anyone in Vermont thought that there might be a nexus between land use planning, saving agricultural land from development and water quality, the prevailing conceit was that “Smart Growth” land use planning would fix everything. It was a case of collective wishful thinking: policy makers wanted equally to themselves take full advantage of cheap food. For this reason, VHCB’s purchases of conservation easements were not — nor are they today — contingent upon sellers, who remain in possession, or upon prospective purchasers’ agreements to farm their land sustainably, i.e., in compliance with the Clean Water Act (1972), or with Vermont’s water quality statutes. VHCB’s purchase, with taxpayer dollars, of conservation easements from farmers who were not willing sellers under no compulsion to sell, was, by any other name, social engineering.

VHCB’s description of “stewardship” is opaque: “If an activity funded by the board involves acquisition by the state of an interest in real property for the purpose of conserving and protecting agricultural land or forestland, important natural areas, or recreation lands, the board, in its discretion, may make a one-time grant to the appropriate state agency or municipality. The grant shall not exceed ten percent of the current appraised value of that property interest and shall be used to support its proper management or maintenance or both.”

The implication is either: VHCB has never questioned the probity of conventional farming; VHCB does not wish to question the probity of conventional farming; or VHCB is interested principally in the expropriation of private land and does not interpret its enabling legislation as a mandate for making the purchase of conservation easements on that land contingent upon agricultural practices.

By the late 1970s, state officials were well aware that the conventional farm paradigm was polluting the environment. That awareness belies the environmental purposes claimed by the Lake Champlain Special Designation Art of 1990, Clean and Clear (2003) and Vermont’s water quality statutes. The Legislature’s failure to include such a requirement, as a condition of VHCB’s purchase of conservation easements — or even as a condition of accepting them as gifts — has been to egregiously frustrate (or belie) the “preservation and conservation” of Vermont farmland. This legislative, or administrative lacuna has empirically not arrested or even attenuated the steady attrition of Vermont family farms and persistently rising pollution in Lake Champlain. All of which, since conventional farming is empirically ruinous to its practitioners and to the lake, begs the question of what are VHCB and the taxpayers conserving farmland for?

Here are the empirical results of this Faustian bargain:

• Vermont’s dairy farms have steadily shrunk in number from approximately 4,729 in 1967, the year land use regulation was enacted, to approximately 3,000 in 1987, the year the Legislature created VHCB, to fewer than 900 today.

• As to protecting Vermont’s water, the Lake Champlain Basin Program reports: “Over the last 20 years, phosphorus concentrations across most of the lake segments … remain well above their established, annual targets.”

No one could look objectively at these data and claim that Vermont’s policies and programs to save its farms and protect its water have succeeded. It is time for the state to look critically at the performance of these programs and rewrite them so they can achieve their statutory purposes.

Comments

Steven Farnham:

April 10, 2013 at 6:50 pm

I know of no reason that “conventional farming” could not be redefined as farming in a manner that does not use (or minimizes the use of) synthetic fertilizers, chemical pesticides, and petroleum fuels. The laws (and exemptions) described in Mr. Maroney’s lament likely are a greater benefit to agribusiness and the petroleum industry than they are to farmers.

A few years ago, a journalist by the name of Daniel Neary devoted a great deal of effort to researching and writing about how the invention (and subsequent requirement of) bulk tanks put many farmers out of business. The logic goes that requiring farmers to own bulk tanks shifted a major expense formerly born by the processors onto the farmers’ side of the ledger.

Mandating that farmers own bulk tanks shifted a great deal of the expense of storage onto the farmers’ backs, and significantly reduced the processors’ hauling expenses, without any additional pay to farmers for their additional liability.

The “get big or get out” campaign which came along not much later is another way in which ag policy benefitted the processors and the petroleum industry, but provided dubious benefit to the producer.

The argument goes that farming had “evolved,” and that to remain competitive, farmers (farms) had to grow bigger, ostensibly for the farmers’ own good. What was not so much discussed is that in agriculturally saturated Vermont, getting bigger wouldn’t happen unless farmers engaged in economic cannibalism – that is to say swallow each other up – which they did with bloody enthusiasm.

The unadvertised result of “getting bigger,” is that farmers are trucking manure to distant fields, and crops back from those fields at a colossal expense. Again, the fleet of machinery, the trucking expense, and the petroleum expense is now on the farmers’ side of the ledger. The processors (according to Maroney, above), need to collect milk from only 900 locations rather than nearly five thousand. Said processors pay less for the milk, enjoy a dramatically reduced trucking expense, yet continue to charge more for what they produce – making a handsome profit doing so.

This is all subsidized by our increasingly Kafkaesque ag policies and tax code rendering the “cheap food” to which Maroney refers in his fifth paragraph, above, a delusion.

Ask any farmer if he is enjoying a good, steady, reliable income and reasonable work hours. Duh – he isn’t. Getting bigger hasn’t done a damn thing to improve his lot in life. But the petroleum industry, the trucking industry, the farm machinery industry, the fertilizer and pesticide industries, are all doing just fine, thank you very much – and if you pay taxes and/or eat – you’re paying for this circus of crooks and their legerdemain.

As James correctly notes, milk pricing exists in a commodities market. The farmer is most often at the bottom of this food chain with other players, as Stephen notes (and using practices that appear to many to violate anti-trust standards) sticking their straws in the bulk tank like lampreys on a lake trout. One of these players is the milk processor which I wrote about in a 2002 op-ed.

Unfortunately, the efforts of the Chair of the Senate Judiciary Committee and the hopes of Senator Sanders that the Obama administration would be better than the Bush administration did not yield results. The Justice Department did nothing. Dean Foods is well oiled on both sides of Washington’s political beltway as can be seen here.

Given the lack of Justice Dept. action, some farmers separately filed a class action suit that, in the end, delivered farmers a pittance, their lawyers a nice chunk of the $30 million settlement and left Dean Foods pretty much intact. You can read about this effort here:

James,
Like folks who wish the Use Value Appraisal Program prohibited landowners from posting their land your criticism of VHCB’s purchase of development rights program is asking something of the program that it was never intended to provide. Whether it should provide that mandate for farmers who sell development rights to “farm their land sustainably” or not is indeed a public policy discussion worth having but I submit it would change the program significantly and involve either a larger appropriation or conservation of far fewer farmland acres.

I worked as the Director of Conservation Programs at VHCB for nine years so let me correct some misconceptions in your characterizations. You state:
“VHCB’s purchase, with taxpayer dollars, of conservation easements from farmers who were not willing sellers under no compulsion to sell, was, by any other name, social engineering.”
I can only speak definitively for my tenure at VHCB but I believe it true of every purchase ever made by VHCB, namely there was NEVER an unwilling seller of development rights. Period. Willing seller/willing buyer was/is the foundation of any purchase made by the program.

Furthermore, an independent appraisal of the rights being purchased and not paying more than appraised value for what is purchased were/are absolute requirements of any conservation project. The assignment to the appraiser was fairly straightforward: what is the value of the land unencumbered, what is the value of the land restricted from development in perpetuity, the difference between those values is the value of the easement. If you want to layer in the requirement that farmers of conserved land must farm in a manner different from farmers of non-conserved land that will additionally encumber the conserved land and therefore, no doubt, raise the cost of the easement.

Next let me address this provocative statement you make:

“The implication is either: VHCB has never questioned the probity of conventional farming; VHCB does not wish to question the probity of conventional farming; or VHCB is interested principally in the expropriation of private land and does not interpret its enabling legislation as a mandate for making the purchase of conservation easements on that land contingent upon agricultural practices.”

The correct answer is “none of the above.” You came close on the third choice, namely that VHCB’s enabling statute could never be interpreted to mandate what you propose,but then you load it with claims that VHCB engages in the “expropriation” of land – see willing seller/willing buyer comment above.

Finally, you have grabbed onto a word in VHCB’s enabling statute (“stewardship”)and misinterpreted it as applying to the owners of conserved lands when in fact it refers to two things: the need for funding to perpetually monitor and enforce the conservation easement the public funds have acquired and the possibility that a state agency or a municipality acquiring land under the program MAY receive additional funds for the management or maintenance of that land. In fact those latter types of stewardship grants were few and far between in my experience at VHCB.

I find increasingly in public policy discussions that people with a zealous attachment to their beliefs will sometimes become so zealous in their pursuit of change that they see opponents at every turn. Your comments here and previously with respect to the Current Use taxation program suggest that you may fall into that category. In my opinion you’ve got great goals but you’re lashing out at the wrong enemies.

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